3 4 Unit of Waqf lecture slides Legal Framework I II

UNIT 3THE LEGAL FRAMEWORK OF THE

INSTITUTION OF WAQF PART I

In the name of ALLAH,the Most Beneficent, the Most Merciful

Topics1. Definition of Waqf2. Legitimacy of Waqf

i. Evidence from the Qur’anii. Evidence from the Sunnahiii.Evidence from the Acts of the

Companions

Waqf TerminologyTerm Meaning

Al-intifa’ Benefit or UsufructAwqaf Irsad The creation of waqf constituted by

the Ruler of a state or Government, from state lands or federal lands, or others, or from Baitul Mal lands in with Islamic Laws

Waqf khayri Waqf instituted for social welfare and general good

Waqf ahli Private waqf instituted for the benefit of family member of a waqif

Baitul Mal Public treasuryIbdal Selling of waqf asset in return for

money or other assetsIstibdal Buying an asset and making it a waqf

by using the money yielded from selling another waqf asset

Lafaz waqf Acknowledgement of waqf

Waqf Terminology (cont.)

Term MeaningMawquf Asset dedicated as waqf. Also known as

corpusMawquf ‘alaih Beneficiary of waqfMusytarak waqf A combination of several types of waqfs

including the creation of waqf ‘am and waqf khas in one deed

Mutawalli Administrator, trustee or nazir of waqfMuqufah Is an individual waqf entity that can be

in the form of a mosque. School, hospital, orphanage, caravansary, agricultural land, etc.

Nazir am General supervisor, manager, trustee or mutawalli

Nazir khas Specific supervisor, manager, trustee or mutawalli

Waqf Literal meaning : to contain, to stop, to preserveTechnical meaning: A dedication of any property from which its usufruct or benefit is used for any charitable purpose recognized by the sharia


Term MeaningWaqf am A dedication in perpetuity of the capital

and income of an asset, recognized by Islamic Law, for religious, charitable or educational purposes, dedicated for general of public purposes

Waqf khas A dedication in perpetuity of the capital and income of an asset, recognized by Islamic Law, for religious, charitable or educational purposes, dedicated for specific or particular individual.

Waqif The founder of a waqfSadaqah Jariyah

Charity that provides continuous benefits

Sadaqah munqati’ah

Discontinuous charity

Waqf capital The corpus of a waqf; waqf by its nature is a capital asset

Waqf fund The pooled waqf capital that is donated by waqifs

Waqfiyyah A written deed, document, or charter setting out in detail the waqf that has been made, its purpose and the terms and conditions governing its use and management thereof.


Term MeaningThawab Blessing and spiritual reward; a reward

from Allah SWT for doing good and being obedient to His commands.

Idkal Addition. A person is granted a beneficiary status from the waqf though he is not entitled for such status.

Ikhraj Removal. The exclusion of a beneficiary from the waqf and to render him disqualified to receive a share from the waqf proceeds.

Istihqaq Locating a definite or indefinite portion of the waqfs proceeds to a beneficiary. The conditions of the waqif should be observed in identifying a beneficiary, distributing the waqf proceeds and the dispositions of the shares of a deceased beneficiary.

Ta’beed Perpetuation. i.e. waqf is not temporal for a fixed period of time.

Testamentary A waqf created through a will of a founder (waqif)

1. Definition of Waqf Although, the term waqf does not appear in the Qur’an nor in the Hadith, Muslim jurists deduced its legitimacy and its law from the Qur’an and the Sunnah.

In this section the legal framework of this institution will be presented, from the four Islamic schools of law (Hanafi, Maliki, Shafii and Hambali)

1. Definition of Waqf (cont.)i. Definition by Prof. Dr Monzer Kahf*: The terms, waqf, in Arabic language (waqafa), means hold, confinement or prohibition.

From shariah point of view, waqf may be defined as holding Maal (asset) and preventing its consumption for the purpose of repeatedly extracting its usufruct for the benefit of an objective representing righteousness/philanthropy.*

Hence, waqf is a continuously usufruct-giving asset as long as its principal is preserved. Preservation in principal may result from its own nature as in land or from arrangements and conditions prescribed by the waqf founder.

Waqf (pl. awqaf) is called Habs (pl. ahbas) in North and West Africa*

* Ref Kahf, M. Waqf and its Sociopolitical Aspects & Financing the Development of Awqaf Property

1. Definition of Waqf (cont.) This definition covers perpetual waqf and waqf that remains as long as its asset lasts, i.e., for the beneficial life of the assets. This is something that is agreed upon among four schools of fiqh. The definition also covers the kind of waqf that is made temporary by the will and conditions of its founder which is discussed and approved in the Malikis school only.

Also, the above mentioned definition covers several new forms of waqf that were not discussed in the classical literature, such as the waqf of financial

1. Definition of Waqf (cont.) rights and waqf of usufruct, since both financial rights, such as publication right of a manuscript, and usufruct, such as a usufruct of rented asset, are covered by the definition of the word Maal (asset) according to the majority of fuqaha and as expressly mentioned in the contemporary collective Fatawa, especially, those of the OIC Fiqh Academy.

Furthermore, this definition emphasizes the idea of abstention from consumption in order to keep the asset for repeated extraction of the usufruct, and it did not make reference to the ownership, so that we avoid the well known difference of opinion among the fuqaha with regard to who owns a waqf property.

1. Definition of Waqf (cont.) It should be noted that the idea of repeated extraction of usufruct does impose restriction on beneficiaries, so that this definition covers the family waqf and the possibility of utilizing the waqf by the waqf founder.

The above definition of waqf also allows inclusion of all kinds of maal (asset) under waqf, so that land and construction can be made waqf for religious purposes, such as mosques for prayers; for philanthropic purposes, such as a hospital, an orphanage or a school.

1. Definition of Waqf (cont.) Land and construction may also be waqf for agricultural utilization or for any other productive utilization in industry and urban areas provided that the net revenues are exclusively devoted for nourishing philanthropy/righteousness causes, such as spending on light and heat of a mosque, on feeding the poor and needy of on the current expenses of a hospital, a school or an orphanage.

1. Definition of Waqf (cont.)ii. Definition by Dr Magda Ismail Abdel Mohsein* The terms waqf and habs are Masdar (verbal nouns, infinitives, in Arabic), and literally they both mean “to stop, to prevent, to restrain” i.e. “al-habs wa al-aman”.*

The tasbil is also used in the same sense, i.e. devoting in the way of Allah (fi sabil Allah).

Although the two terms, waqf and habs, carry the same meaning, different countries prefer different usage.

Term waqf is used in Lebonan, Israel, Jordon, Iraq and UAE, while the term habs is more commonly used in North Africa.

In Turkey the term Vakif (pl. evkaf) is used and In Malaysia the term waqf is spelt as wakaf.

* Ref: Abdel Mohsin, M.I., Cash Waqf: A New Financial Product.

1. Definition of Waqfiii.Definition of Waqf by Jabatan Waqf, Zakat

and Haji (JPM) Waqf is a private possession or asset in any form

that has been put under injunction from any form of transaction including sale, inheritance, hibah (grant) and wasiyyah (will) whilst its physical source (‘ain) remains intact and unchanged.

In Islamic law, endowment ownership is non-permanent since it has been entitled to Allah to benefit all Muslims.

It is a sincere gift in the form of private possession to the state or person of authority for the good of all Muslims so long as the wealth is used in compliance with Islamic requirements.

1. Definition of Waqf (cont.) All these terms have the same meaning, which is the holding and preservation of a certain philanthropy – sadaqah (charity) with the intention of prohibiting any use or disposition of the property outside the specific purposes to which the property is dedicated, in such a way that it cannot be bequeathed or sold.

In English the term waqf can be translated as ‘religious endowment’ but this translation may not convey the sense devotion and grace with which waqf is associated in Islam

1. Definition of Waqf (cont.) There is consensus among the fuqaha regarding the definition of these terms. According to them all these terms mean the confinement of the ‘ayn (mawquf, corpus or property) from the ownership and the dedication of its usufruct to the charitable purposes.

However they disagree upon the permissibility and revocability of waqf.

The disagreement in opinions between the fuqaha, in this regard, created an unclear view in certain Muslim countries that tried to abolish the waqf especially during the end of 19th century and the beginning of 20th century.

1. Definition of Waqf (cont.)iv. Definition by Imam Abu Hanifah

(80-150H/700-768AD) “the detention of specific property from the

ownership of the founder (founder of waqf), and dedicating its revenue to the charitable purposes in manner of a loan”

According to Hanafi, the founder has the right to return the waqf property to his ownership and he can also sell it, i.e. the waqf is revocable’

However his opinion regarding moveable properties to be dedicated as waqf is not valid.

Taking these views, it means a founder who created a waqf can reclaim it and resell it.

Besides, no movable properties such as books, weapons, horses can be created as waqf.

1. Definition of Waqf (cont.)

In contrast to Abu Hanifah’s opinion, his disciple Abu Yusuf (113-182H/729-798AD), developed a system of legal doctrine which became the Hanafi definition of waqf.

Abu Yusuf stated that waqf is only valid if it is irrevocable i.e. cannot be reverted back to the founder, but must be made in perpetuity.

He agreed that no movable property can be endowed as waqf, but weapons of war, cattle and implements of animal husbandry attached to the dedicated waqf land and books can be dedicated as waqf.

He based his opinion on the hadith of the Prophet SAW which stated as follows, “The Prophet SAW said; Khalid b. al-Walid has appropriated his horse and armor for the cause of Allah”. According to him waqf of movable property is valid only if it was customary during the time of Prophet SAW.

1. Definition of Waqf (cont.)

In contrast to the last view, another disciple of Abu Hanifah, Imam Zufar (died 158H) approved all movable property to be dedicated as waqf.

He also included the waqf of Dirham and Dinar i.e waqf al-nuqud (cash waqf).

Imam Zufar deduced that jewellery could be dedicated as waqf. He based his opinion on the act of Hafsah, the wife of the Prophet SAW and the daughter of Umar al-Khattab, who dedicated her jewellery to her relative.

Imam al-Syaibani (132-189H/750-804AD) and al-Sarakhsi (died 490H/1096AD) had approved all movable properties not only subject to the existence of custom during the time of Prophet SAW, but customs arising in another time and country.

1. Definition of Waqf (cont.)v. Imam Malik Anas (93-179H/713-

798AD) Considered waqf as confinement for the cause of Allah, which agrees with the view of Abu Yusuf in term of the irrevocability and perpetuity of waqf.

Also agreed on both immovable and movable properties as a subject matter of waqf even if it is cash waqf.

1. Definition of Waqf (cont.)v. Imam Shafie (150-204H /767-820AD)

and Imam Hanbal (164-241H/780-855AD)

Defined waqf as the confinement of the property and the pledge of its usufruct in perpetuity for the cause of Allah.

Both agreed on the validity of both immovable and movable properties as a subject matter of waqf.

1. Definition of Waqf (cont.) Summary of definition

All four schools of law agreed upon the irrevocability and the perpetuity of the waqf once it is established.

Movable properties are permissible for waqf purposes. Movable properties give the flexibility in creating such property as waqf, especially cash waqf.

1. Definition of Waqf (cont.)Ownership of Waqf Ownership lies outside the person who created the waqf.

Some jurists argue that the ownership of waqf belongs to Allah. Other believe that it belongs to the beneficiaries although the their ownership is not complete in the sense that they are not permitted to dispose of the property or use it in a way different from what was decreed by waqif.

In this regards Waqf differs from a foundation (trust) since the management of a foundations is usually able to sell its property. This implies that perpetuity is stronger in waqf than in foundations.

2. Legitimacy of Waqfi. Evidence from the Qur’an

Even Allah SWT does not specify the term waqf in the Qur’an, there are some verses on matters regarding charity which carry the essence of waqf as stated in the following verse Ali Imran 3:92

“By no means shall ye attain righteousness unless ye give (freely) of that which ye love; and whatever ye give, of a truth Allah knoweth it well.”

2. Legitimacy of Waqf (cont.)

This Quranic verse had been interpreted by Abu Talha. ‘Obid Allah, one of the companions of the Prophet SAW, who endowed his most lovely garden called Bi’ruha’, full of date-palm trees which was in front of the mosque of the Prophet SAW. The Prophet SAW used to go there and drink from its nice water. So when this verse was revealed, Abu Talha said to the Prophet SAW:


‘Allah’s Messenger! Allah, the Blessed, the Superior says: By no means shall you attain al-Birr (righteousness, piety etc, it means here Allah’s Reward i.e. Paradise), unless you spend (in Allah’s Cause) of that which you love. And no doubt, Bi’ruha’ garden is the most beloved of all my property to me. So I want to give it in charity in Allah’s Cause. I expect it reward from Allah. O Allah’s Messenger SAW spend it where Allah makes you think feasible.” On that the Prophet SAW said, ‘Bikh (good) it is useful property. I have heard what you have said. O Abu Talha, and I think it would be proper if you give it to your kith and kin. Abu Talha said, ‘ I will do so, O Allah Messenger’. Then Abu Talha distributed the garden among his relatives and his cousins.’


Verse al-Baqarah 2:177“It is not righteousness that ye turn your faces to the East and the West; but righteous is he who believeth in Allah and the Last Day and the angels and the Scripture and the prophets; and spend wealth, for love of Him, to kinsfolk and to orphans and the needy and the wayfarer and to those who ask, and to set slaves free; and observeth proper worship and payeth the poor-due (practice regular charity). And those who keep their treaty when they make one, and the patient in tribulation and adversity and time of stress. Such are they who are sincere. Such are the Muttaqun (Allah-fearing).”


Verse 2:177 highlights that our faith should be true and sincere and we must be prepared to show it by performing deeds of charity to fellow men.

Supporting social institutions The term “spend” in this verse has the essence of the two waqf i.e.

1. waqf for your kin means family waqf and

2. for the orphans, needy wayfarers and those who ask and to set free slaves, means public waqf.

2. Legitimacy of Waqf (cont.)ii. Evidence from the Sunnah

“Abu Hurairah reported Allah’s Messenger as saying: When a man dies, his acts come to an end, except three things, recurring charity (amal jariyah), or knowledge (by which people benefit), or pious offspring, who prays for him” (Sahih Muslim)

Majority of the Muslim jurists understood that ‘recurring charity’ serves as the basis of waqf.


Waqf enables the believers to perform all the three good deeds which has been mentioned in the above hadith.

a. Waqf can assure ongoing, recurring charity for years, even centuries, after the death of the founder.

b. Waqf can finance scholars whose lasting works would benefit mankind for a long period of time and the thawab (reward) that accrues to them would be shared by the founder who had provided for the sustenance in the first place

c. Management of the waqf can entrusted to the offspring of the founder so that on the one hand, careful and loyal management is assured, and on the other, the offspring would pray for the deceased in gratefulness for his waqf.

2. Legitimacy of Waqf (cont.)iii.Evidence from the Acts of the Companions

Narrated by Umar r.a.: In the lifetime of Allah’s Messenger SAW, ‘Umar gave in charity some of his property, a garden of date palms called Thamgh. ‘Umar said, “O Allah’s Messenger! I have some property which I prize highly and I want to give it in charity.” the Prophet SAW said, “Give it in charity (i.e. as an endowment) with its land and trees on the condition that the land and trees will be neither be sold nor given as a present, nor bequeathed, but the fruits are to be spent in charity.” So Umar gave it in charity, and it was for Allah’s Cause, the emancipation (free) of slaves, for the poor, for guest, for travelers, and for kinsmen. The person acting as its administrator could eat from it reasonably and fairly, and could let a friend of his, eat from it provided he had no intention of becoming wealthy by its means. (Sahih Bukhari, Kitab al-Shurut)


The above hadith highlighted many waqf rulesIn the 1st instance, once the property becomes a waqf it must not be sold or inherited or given away as a gift.

It is up to the founder to give it to anyone whom he feels needs it more, either of the public, or of his family or to any specific person. In this case Umar devoted it to both.

The administration of the waqf can be entrusted to the founder himself; and

The founder can benefit from his own waqf in a reasonable manner as long as he lives


The following hadith provides clear evidence that Prophet SAW encouraged the companion to create waqf.

Uthman Affan r.a. narrated: that when he was encircled (by the rebels) he said, “I ask you by Allah, and I ask nobody but the companions of the Prophet SAW. Don’t you know that Allah’s Messenger SAW said: “whoever will (buy and) dig the well of Rumah will be granted Paradise,” and I (bought and) dug it. Don’t you know that he said, “whoever equip the army of Usra i.e. Tabuk’s Ghazwa (The Raiding Party of Tabuk) will be granted Paradise” and I equipped it? They attested to whatever he said.” (Sahih Bukhari)


The following hadith encouraged the companions of the Prophet SAW to create movable waqf

Abu Hurairah r.a. narrated: The Prophet SAW said, “If somebody keeps a horse (for Jihad) in Allah’s Cause motivated by his faith in Allah and his belief in His Promise, then he will be rewarded on the Day of Resurrection for what the horse has eaten or drunk and for his dung and urine”. (Sahih Bukhari)

So Khalid al-Walid was the first one to keep his horse and his armour for the Cause of Allah, in response to encouragement of the Prophet SAW. This shows the validity of the movable waqf during the Prophet’s SAW time.

2. Legitimacy of Waqf (cont.) Companions endowment (mostly family waqf)

Caliph Abu Bakar – endowed his house to his children Caliph Umar endowed his land at Thamgh to his children Caliph Uthman endowed his well Bi’ru Rumah Caliph Ali endowed his land in Yanbu Sa’d ibn Abu Waqqas endowed his house in Madinah and

Egypt for his children al-Zubair ibn al-Awwam endowed his house in Makkah and

Egypt and his money in Madinah for his children Omar al-’As endowed his house in Makkah for his

children Hakim Hizam endowed his house in Makkah and Madinah

for his children. Wives of Prophet SAW, ‘Aisha, Ummu Salamah, Ummu

Habibah, Safiah and Hafsah created their own waqf for their benefit of their kin.

End of Unit 3

UNIT 4LEGAL FRAMEWORK OF THE INSTITUTION OF WAQF

PART II

In the name of ALLAH,the Most Beneficent, the Most Merciful

Topics3. Classification of Waqf Property

i. Subject to the Beneficiaries (al-Mawquf ‘Alaihim)

a. Public Waqf (waqf Kahyri)b. Family Waqf (al-waqf al-dhurri, al-ahli

&‘ala’-wlad)c. Combined Public and Familty Waqf (al-

Waqf al-Mushtarak)ii. Subject to the Endowment Assets (al-

Mawquf)a. Immovable and Movable Propertyb. Waqf Sahih and Waqf Ghair Sahihc. Direct and Indirect

Topics4. Rules Necessary for the Validity

of Waqfi. Conditions for the Validity of Waqf

a. ‘Aqil, Baligh and Hurrb. Movable or Immovable Propertyc. Mutawallid. Beneficiariese. Waqf Deed

ii. Key Restrictions of Waqfa. Irrevocabilityb. Perpetuityc. Inalienability

Topicsiii.Ten Stipulations for the Creation of

Waqfa. Ziyadah (Increase) and Nuqsan

(Decrease)b. Idkal (Addition) and Ikhraj (Removal)c. I’ta’ (Granting) and Hirman

(Dispossession)d. Taghyir (Replacement) and Tabdil

(Conversion)e. Istibdal (Substitution) and Ibdal

(Exchange)

Introduction Although the classification of waqf property did not take place during the time of Prophet SAW, various schools of laws classified it later in different ways.

Research based upon more than 300 waqfs of 15th and 16th century Edirne, a frontier town in the Ottoman Balkans, has revealed the vast majority of the Ottoman waqfs were founded by private individuals rather than the Sultans whose waqf constituted a mere 1 to 2% of the total.

Waqf property can be classified into two typesi. Subject to the Beneficiaries (al-

Mawquf ‘Alaihim)ii. Subject to the Endowment Assets

(al-Mawquf)

3. Classification of Waqf Property

3. Classification of Waqf Propertyi. Subject to the Beneficiaries (al-Mawquf ‘Alaihim)a. Public Waqf (waqf Kahyri)

Endowment made the founder to support the general good and welfare of the poor and the needy society.

Usually in the form of buildings such as mosques, schools, hospitals, orphanage houses, guest houses, and providing basic infrastructure, or dedicating books, enclosing lands for use as cemeteries, dug wells, dedicating weapons, etc.

This type of waqf was created by Prophet SAW himself and, he also encouraged his companions to create such waqfs too.

3. Classification of Waqf Property (cont.)

b. Family Waqf (al-waqf al-dhurri, al-ahli &‘ala’-wlad)

The founder endows his property to his children, grandchildren, relatives or to other persons whom he specifies.

If the beneficiaries specified by the founder are no longer alive, then only in this case will the waqf property be given for public welfare purposes.

This type of waqf was approved by the Prophet SAW as he encouraged his companions to make endowments to their nearest relatives, as presented above. Moreover, the Prophet SAW declared that the most pious offering is to one’s family in providing for their wants, which is more pious than giving alms to beggars


c. Combined Public and Familty Waqf (al-Waqf al-Mushtarak)

Is a waqf created by the founder to support both the public and his family, i.e. the founder dedicates a part of his property to his family and another part to the public


ii. Subject to the Endowment Assets (al-Mawquf)

Three typesa. Immovable and Movable Propertyb. Waqf Sahih and Waqf Ghair Sahihc. Direct and Indirect


a. Immovable and Movable Property The immovable property includes

land, fields, farms, or buildings such as mosques, schools, hospitals, or basic infrastructures such as bridges, roads, water supply etc.

Regarding movable property, it includes cattle and implements of husbandry, books, money, crops and weapons, shares of a Joint-Stock Company, etc.


b. Waqf Sahih (Sound Waqf) and Waqf Ghair Sahih (Unsound Waqf)

Waqf sahih is the waqf that is founded upon mulk land i.e. upon privately-owned freehold property over which the owner held complete rights of alienation.

In contrast, waqf ghair sahih is the waqf that is founded upon lands that been originally been miri (state-owned lands)and whose property therefore belong to the empire’s public treasury


c. Direct (Khayrat) and Indirect Waqf (Akarat) These waqf had been classified recently by some

Muslim scholars such as Prof Monzer Kahf. Direct waqf (Kayrat) is waqf created to serve the

people free of charge, for example, building mosques, schools, hospitals, libraries, etc. in order to serve people for praying, provide free education for the children, and to treat patients free of charge.

However, for these direct waqfs to continue, the creation of indirect waqf (Akarat) is needed in order to provide the running expenses for those direct waqfs, for example, dedicating such assets as shops, houses, and agricultural land, in order to enable them to be rented and their income to be utilized to support the direct waqf.

4. Rules Necessary for the Validity of Waqf

For a waqf to be valid there are certain conditions and restrictions, which have been agreed upon by majority of Muslim jurists. It is useful to highlight these conditions and restrictions owing to the importance of establishing new waqfs at the present time.

4. Rules Necessary for the Validity of Waqf (cont.)

i. Conditions for the Validity of Waqfa. ‘Aqil, Baligh and Hurr The founder must be ‘aqil (in full

possession of his physical and mental faculties), baligh (adult) and hurr (a free man/woman), and he must be capable of transferring it from his ownership to the ownership of Allah SWT.

This means that he owns the property either by having bought it or by buying it himself, or through his inheritance of the property.


b. Movable or Immovable Property The dedicated property can be

either a movable or an immovable property

c. Mutawalli The founder has to appoint a

mutawalli (trustee), either appointing himself or by appointing some specified person in order to administer and to manage his own waqf.

He also has to specify the successor to his trustee in case the trustee dies or becoming incapable of performing his duties.


d. Beneficiaries The beneficiaries should be

specified by the founder in his waqfiah (waqf deed).

These beneficiaries can either be relatives of the founder, public individuals, such as the poor and the needy, of for charitable public purposes such as the building of a mosque; a school, or a hospital etc.


e. Waqf Deed The creation of waqf can be oral

i.e. verbal, with the action such as building a mosque a calling people to pray inside it.

Alternatively, the waqf can also be created in a written form known as a Waqf Deed.


ii. Key Restrictions of Waqfa. Irrevocability

Is the most important feature of waqf as there is a consensus among the Muslim jurists that the founder cannot revoke the dedication if the property has already been declared as waqf.

Once declared, the founder and his or her heirs cannot change its status.

To ensure that the founder or his descendents have no right to take it back.

Thus it will continue to benefit the majority and at the same time the founder will continue to get rewards from Allah SWT even after his death


b. Perpetuity Majority Muslim jurists believe that

the waqf must be perpetual once it is created.

This will avoid confiscation of the waqf property by the government or by any body.

On the hand it will ensure regular and continual support from his waqf property towards financing charitable institutions such as mosques, hospitals, orphanage, schools, etc.


c. Inalienability Not transferable once created. This feature originates as the property of waqf is

transferred to Allah SWT, although the usufruct derived from it can benefit man.

All jurists agree that no one can ever become the owner to alienate it and that waqf property is thus in its nature, a form of a ‘frozen asset’.

It cannot be the subject of any sale, disposition, mortgage, gift, inheritance, or any alienation whatsoever.

All these conditions and restrictions will secure a continual benefit for the present and the future generations.


iii.Ten Stipulations for the Creation of Waqf The Hanafi School of Law has approved ten

stipulations for the creation of waqf. Likewise the other schools of law have accepted these ten stipulations for the creation of waqf.

These stipulations give flexibility in switching the revenue of the waqf to another, according to the needs of the society.

However, unless the founder of waqf put these ten stipulations in his deeds, the qadi (chief judge), nazir (supervisor) or trustee cannot switvh the distribution of the revenue from the waqf property to the beneficiary except for the last two stipulations as discussed below.


When endowing their properties and transferring their ownership from their own possession to that of God, the founders had to follow a strict procedure but they were permitted to retain certain powers.

These ten stipulations are actually five pairs of stipulations.

The first four pairs give flexibility in changing the distribution of the revenue of the waqf while the last pair allows an actual change in the waqf property itself.


The five pairs are:a. Ziyadah (Increase) and Nuqsan

(Decrease)b. Idkal (Addition) and Ikhraj

(Removal)c. I’ta’ (Granting) and Hirman

(Dispossession)d. Taghyir (Replacement) and Tabdil

(Conversion)e. Istibdal (Substitution) and Ibdal

(Exchange)


a. Ziyadah (Increase) and Nuqsan (Decrease) This stipulation gives the right to the

founder to increase the share of one beneficiary and at the same time to decrease the share of another beneficiary.

This is an important condition for, if the founder had originally created a waqf in order to distribute its revenue equally to both a specific mosque and a hospital, and later he or the trustee realizes that the hospital needs more than 50% and the mosque needs less than 50%, then in such case, this stipulations give the right to increase the share of the hospital up to, say, 70% and to decrease the share of the mosque to 30%.


b. Idkal (Addition) and Ikhraj (Removal) This condition gives the founder or the trustee

the right to add a new beneficiary if he realizes the need and at the same time to remove another beneficiary.

This also gives the flexibility to the public waqf, by removing a beneficiary whenever the founder feels that there is another beneficiary who is in more need than the first.

This can give flexibility to the public service too. For example, directing the revenue of waqf from building a dam, once the dam is finished, to another important service, such as providing water or supplying electricity in rural areas according to the need of the society.


c. I’ta’ (Granting) and Hirman (Dispossession)

These stipulations permit the founder or the trustee to grant all or a portion of his waqf revenue to whomever he chooses for a specified period and to dispossess whomever he chooses.

For example, if the revenue of a certain waqf is directed to support a student in a certain university, the founder can grant a portion or all of that revenue to a more needy person such to a patient to a certain hospital.


d. Taghyir (Replacement) and Tabdil (Conversion)

Taghyir gives the founder the right to replace the use of waqf revenue, for example, instead of maintaining the waqf property, the founder can purchased other required equipment such as a surgical instrument for a needy hospital.

Tabdil gives the founder the right to change the waqf property itself. For example, if the founder creates agricultural land as a waqf, and after many years this land becomes unproductive, in this case this stipulation gives the founder the right to change its function and construct a house.


v. Istibdal (Substitution) and Ibdal (Exchange)

Ibdal is the actual selling of non-profitable waqf property while Istibdal is the purchase of another property to replace the former waqf property.

This is an extreme important stipulation, which can be applied by the founder or trustee, with the permission of the Chief Justice, even if the founder did not include it in his written deeds.

This stipulation gives the trustee the right to exchange unprofitable waqf property with another waqf property, which is profitable.

This is an important power that the founder can bestow upon himself.

The importance of Istibdal (substitution) lies in the fact it embodies certain dynamism. By allowing the founder to sell the waqf property the system is made responsive to market conditions.

Thus, if a waqf land which happens to be originally at the outskirt of a town ends up being in the middle of it due to urban expansion and its value sky rockets as a result, the founder is enable to exchange the waqf land for another one, and in the process, can either expand the waqf land, again, at the outskirts by purchasing much more land or enrich his waqf with cash.


Furhtermore, istibdal assumes great importance particularly for those waqf whose corpus is constituted of movables.

Such waqf achieve perpetuity, a conditio sine qua non, often by applying istibdal.

Indeed, if we consider a cash waqf i.e. where the original endowment was in cash, and assume further the government is planning to change the currency of the country or debase it, istibdal under such conditions, becomes a vitally important instrument to assure the perpetuity of waqf.


However istibdal rule also embodies great potential for misuse. So much so that this instrument essential for the survival of the institution of waqfs has been used by its opponent to destroy it.

This is understandable, for istibdal allows for the sale of a waqf property, which is supposed to belong to God and to be perpetual.

Thus, under what conditions istibdal would be legal?


iv. The controversy of Istibdal The issue is complicated. All four major schools do not agree on this problem.

Malikis strictly prohibits istibdal in real estate waqfs with very few exceptions. But the Malikis are considerably less strict concerning the istibdal on the waqf of movables. The only condition they attach to such istibdal is that the movable corpus of the waqf should have been reduced to such a state that it has become impossible to fulfill the original purpose of the waqf because it is not generating sufficient returns.


The Shafiis are also against istibdal, which in their opinion can be used as an instrument to destroy waqf properties. They even prohibit the sale of a totally destroyed mosque on the grounds that it may be restored some day.

Thus the Shafiis position is even more stringent than that of the Malikis.


Hanafis position on istibdal can be summarized as follows:

If the founder has not made any stipulation in the deed about the sale or exchange of the waqf’s property, then an istibdal transaction would not be permitted. But if the waqf property is in a poor state that it does not generate any revenue or the revenue it generates is not sufficient to cover its expenses and therefore an istibdal of waqf property is deemed to be beneficial for the waqf, then under such circumstances, even if the founder has not stipulated in the deed of the endowment, such a transaction may be permitted subject to the approval of the judge as well as the permission of the Sultan.


Under Hanafi, there can be three alternatives pertaining to istibdal:

a) When the founder has permitted himself, according to the ten stipulations mentioned above, to resort to istibdal. Under this condition three conflicting opinion has been voiced:

i. Imam Muhammad (al-Shaybani) has rejected this condition and argued that while the waqf would be valid, the condition itself would be void. Put differently according to Imam Muhammad, the founder cannot vest himself such an authority.

ii. A group of Hanafis jurists have argued that if a founder reserves for himself the right to apply to istibdal, both the waqf and condition would be void.

iii. Led by Abu Yusuf, the majority of Hanafi school consider waqf as well as the ten stipulations of ibdal-istibdal as valid.


b) When the waqf properties are ruin to the extend that they have become totally useless, i.e., generating no revenue or not enough to cover its expenses. Under such conditions, even if the original founder has not vested himself with the authority to resort to istibdal, and providing that the local judge decides that an istibdal would be beneficial to the waqf, the great majority of Hanafis jurists, including Imam Muhammad, have approved istibdal.


c) When the founder has not vested himself with right to resort to istibdal and when the waqf properties are still usable, but it is argued that if the waqf property is subjected to istibdal, it would generate greater revenue for the waqf.

i. A group of jusrists, led by Hilal, have argued that this may lead to corruption and should therefore be prohibited.

ii. Led by Abu Yusuf, another is of the opinion that, providing the judge permission is obtained, istibdal would be valid.


d) Finally, when founder has ruled that istibdal is void. Under this situation two conflicting opinions have been propounded:

i. In such a situation neither the judge nor any other person can resort to istibdal.

ii. Led by Abu Yusuf, another group of jurists have argued that if the judge consider it beneficial to the waqf, he can override the original conditions stipulated by the founder.

Thus, in short, istibdal is a highly controversial issue in Islamic Law and has been likened to a sharp knife capable of cutting both for good and for evil.


Thank youQ & A

3 4 Unit of Waqf lecture slides Legal Framework I II

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Transcript of 3 4 Unit of Waqf lecture slides Legal Framework I II